United States v. Serrano-Rodriguez ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
January 6, 2016
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 15-5030
v. (D.C. No. 4:14-CR-00191-GKF-1)
(N.D. Okla.)
ISMAEL SERRANO-RODRIGUEZ,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, LUCERO, and McHUGH, Circuit Judges. **
Defendant-Appellant Ismael Serrano-Rodriguez appeals from the revocation
of his supervised release and the imposition of a 12-month sentence running
consecutively to the sentence imposed in Northern District of Oklahoma case no.
14-CR-165-CVE. After reviewing the relevant facts and law and concluding that
she could not identify a non-frivolous ground to appeal, Mr. Serrano-Rodriguez’s
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
counsel seeks to withdraw and has filed an Anders brief. Anders v. California,
386 U.S. 738 (1967); Aplt. Br. at 5. In reply to counsel’s Anders brief, Mr.
Serrano-Rodriguez argues his appeal has merit and he is entitled to a reduction in
his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a). After conducting an independent analysis of the case, we grant
counsel’s motion to withdraw and dismiss the appeal.
In 2002, Mr. Serrano-Rodriguez was sentenced to 84 months in custody
followed by five years of supervised release for possession of methamphetamine
with intent to distribute. 1 Rawle 19. In 2011, after serving his sentence, Mr.
Serrano-Rodriguez’s supervised release was revoked following the violation of a
condition prohibiting the commission of another federal, state, or local crime; Mr.
Serrano-Rodriguez returned as a deported alien to the United States. Id. at 22–23.
For this violation, Mr. Serrano-Rodriguez was sentenced to 10 months in custody,
followed by 50 months of supervised release. Id. at 24–25. The same condition
appeared in the terms of his new supervised release; Mr. Serrano-Rodriguez was
prohibited from committing another federal, state, or local crime. Id. at 25.
Mr. Serrano-Rodriguez again violated this condition – returning as a
deported alien to the United States. Id. at 31. Mr. Serrano-Rodriguez waived his
right to a revocation hearing and all the rights available in that hearing. 2 Rawle 4.
Additionally, he stipulated that he violated a condition of his supervised release.
Id. As noted previously, the sentencing court imposed a 12-month custodial
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sentence to run consecutively to a 37-month custodial sentence imposed a few
days earlier. Id. at 29–31. Mr. Serrano-Rodriguez now appeals from the 12-
month sentence and requests a downward departure and/or variance reducing his
sentence to six months or less.
Under Anders, counsel may “request permission to withdraw where counsel
conscientiously examines a case and determines that any appeal would be wholly
frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). Mr.
Serrano-Rodriguez was served with a copy of counsel’s Anders brief and has filed
a response. He contends that he is entitled to a sentence reduction under U.S.
Sentencing Guidelines § 5k2.0(c) because he voluntarily waived his removal
rights, is currently subjected to unusually harsh conditions of confinement, and
will suffer severe post-conviction consequences from his confinement.
Pursuant to Anders, we conduct an independent review to determine
whether Mr. Serrano-Rodriguez’s claims are frivolous. 386 U.S. at 744–45. We
review an order revoking supervised release for an abuse of discretion. United
States v. McAfee, 998 F.2d 835, 837 (10th Cir. 1993). Conversely, when
reviewing a sentence imposed after the revocation of supervised release, we
review the factual findings for clear error and the legal conclusions de novo.
United States v. Tsosie, 376 F.3d 1210, 1217–18 (10th Cir. 2004). We will not
disturb a sentence that is both “reasoned and reasonable.” Id. at 1218. A
presumption of reasonableness is “appropriate in reviewing a revocation-of-
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supervised-release sentence within the range suggested by the Commission’s
policy statements.” United States v. McBride, 633 F.3d 1229, 1233 (10th Cir.
2011).
Conducting our review, we conclude that the district court’s sentence was
both reasoned and reasonable. The district court considered the sentencing
guidelines and the factors listed in 18 U.S.C. § 3553(a). 2 Rawle 29–30. The court
also considered the “nature and circumstances of the violations and the history
and characteristics of the defendant.” Id. at 30. At sentencing, neither the
government nor the defendant filed a motion or sentencing memorandum
requesting a departure or variance from the guideline range. Id. at 29. The
sentence imposed by the district court is at the minimum of the applicable
sentencing guideline range, see U.S.S.G. § 7B1.4 (2014), and therefore presumed
reasonable.
Mr. Serrano-Rodriguez’s arguments do not warrant a variance or downward
departure. Throughout his brief, Mr. Serrano-Rodriguez cites to mitigating
factors including statements by former Attorney General Holder regarding the
large prison population in the United States, the idea that his guilty plea and
waiver of removal rights should entitle him to an automatic downward variance,
and the argument that but for his alienage, he would be entitled to significant
benefits. Even assuming that all of the factors offered by Mr. Serrano-Rodriguez
are factually accurate, they are insufficient to rebut the presumption of
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reasonableness attached to his sentence.
“[I]n many cases there will be a range of possible outcomes the facts and
law at issue can fairly support; rather than pick and choose among them
ourselves, we will defer to the district court’s judgment so long as it falls within
the realm of these rationally available choices.” United States v. McComb, 519
F.3d 1049, 1053 (10th Cir. 2007). The cases relied upon by Mr. Serrano-
Rodriguez all underscore this premise; a sentence within the guideline range is
presumptively reasonable. See, e.g., United States v. Jauregui, 314 F.3d 961, 963
(8th Cir. 2003) (holding that although the waiver of removal proceedings is a
factor the district court may consider, “the decision to depart or not is soundly
within the district court’s discretion”). Nothing offered by Mr. Serrano-
Rodriguez rebuts this presumption nor does it suggest the sentence was outside of
the court’s “realm of rationally available choices.” McComb, 519 F.3d at 1053.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the
appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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